Clear The Bench Colorado Director Matt Arnold was invited to discuss the question of whether Colorado courts are political (short answer: of course, to some extent) in a panel discussion broadcast on The Aaron Harber Show. Other panelists were judicial reform activist Peter Coulter, Attorney Tom Harrison, and former Colorado Supreme Court Justice Rebecca Love Kourlis.

It is naive beyond credulity to assert that political considerations do not influence judicial decisions (if for no other reason than the indisputable fact that judges are human, and have opinions, biases, and predilections that may intrude upon their decision-making). It is also indisputable that courts have increasingly become involved in making policy, rather than applying law – addressing questions that have traditionally (and correctly, IMNSHO) been viewed as non-justiciable (violating the “political question” doctrine).

The “official” system of evaluating judicial performance also lacks transparency and serves to cover up (and perpetuate) existing politicization of the state’s third branch of government.

The worst element of the “”judicial evaluation” system in place is that a commission composed entirely of political appointees tells(er, “recommends”) Coloradans how to vote on judges – our third branch of government.

It is also a myth to assert that Colorado’s “merit selection and retention” system is free of political influence and special-interest spending or influence.

However, the greater and more pernicious element of politicization of our courts simply revolves around what cases are taken (or allowed to proceed); the increasing reach of litigation into every corner of society and nearly every interaction (commercial or personal) between a wide range of parties. When judges insert themselves (or allow the courts to be inserted) into areas that are more properly issues of governance, policy, social interactions or even etiquette, and matters of belief, rather than straightforward questions of law, the courts axiomatically become more political.

When judges impose personal policy preferences over the written text of the law, the rule of law suffers. In our system of justice, judges are like referees at a sporting event: at least, that’s the view of the “Rule of Law” school of jurisprudence. Like referees, judges are supposed to be impartial – taking no sides, applying the rules equally to both teams and all players. Judges must not “play favorites”, let alone be “players.”

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” – Abraham Lincoln

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions.

Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.